TO: ALL UNITED STATES ATTORNEYS ALL FIRST ASSISTANT UNITED STATES ATTORNEYS ALL CRIMINAL CHIEFS FROM: John C. Keeney Acting Assistant Attorney General Criminal Division Donald K. Stern United States Attorney District of Massachusetts Chair, Attorney General's Advisory Committee SUBJECT: Giving Downward Departures In Exchange for Aliens' Stipulations to Removal From the United States ACTION REQUIRED: Please distribute to all AUSAs who handle cases involving alien defendants CONTACT PERSON: Joseph E. Koehler Counsel to the Director (202) 616-0188 aex15.po.jkoehler On April 28, 1995, the Attorney General issued a memorandum in which she authorized certain downward departures to be given in exchange for an alien's agreement to be deported as part of a plea agreement in a criminal case. Numerous districts have implemented the memorandum in varying fashions. As set forth below, two recent legal developments may impact whether or how United States Attorneys' offices apply the departure policy described in the Attorney General's memorandum. First, in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 1570, 1701-1703 (1996), Congress amended the Immigration and Nationality Act to provide for administrative reinstatement of prior deportation, exclusion and removal orders. This change in the law eliminates cumbersome deportation proceedings for most previously- deported aliens. In addition, IIRAIRA provides for administrative deportation of non-permanent-resident aliens who are convicted of aggravated felonies, again streamlining the removal process. These statutory changes combine to substantially reduce the benefit the Government derives solely from an alien's concession of alienage and stipulation to removal from the United States. Second, in United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir.), cert denied, 522 U.S. 957 (1997), the Court of Appeals for the First Circuit held an alien's stipulation of alienage and waiver of deportability in a plea agreement do not in themselves justify downward departure, at least in the absence of a non-frivolous defense to deportation. In light of these recent developments, the Department is evaluating whether the policy set forth in the April 28, 1995, memorandum remains appropriate. In the interim, prosecutors should not enter into agreements providing for a recommendation of a downward departure unless the Government receives an articulable benefit not contemplated by the Sentencing Guidelines. EDITOR'S NOTE: See also Criminal Resource Manual 1921.
Updated September 19, 2018